State v. Davis
| Decision Date | 05 January 1993 |
| Docket Number | No. WD,WD |
| Citation | 849 S.W.2d 34 |
| Parties | STATE of Missouri, Respondent, v. Michael A. DAVIS, Appellant. Michael Allen DAVIS, Appellant, v. STATE of Missouri, Respondent. 44132. |
| Court | Missouri Court of Appeals |
Anthony C. Cardarella, Asst. Appellate Defender, Kansas City, for appellant.
Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
BEFORE ULRICH, P.J., and SHANGLER and FENNER, JJ.
This is a consolidated appeal by Michael A. Davis from convictions and sentences of several offenses entered upon jury verdict and from the order denying, after evidentiary hearing, his motion under Rule 29.15 to vacate the convictions and sentences previously imposed.
Davis was convicted as a persistent offender [§ 558.016.3, RSMo 1986], for kidnapping [§ 565.110]; robbery in the second degree [§ 569.030], tampering in the first degree [§ 569.080.1(2) ], unlawful use of a weapon [§ 571.030.1(4) ], and armed criminal action [§ 571.015.1]. He was sentenced to 25 years for kidnapping, 25 years for robbery in the second degree, 15 years for tampering, 10 years for unlawful use of a weapon and 35 years for armed criminal action. The sentences were imposed to run consecutively, except that the ten year sentence for unlawful use of a weapon was made to run concurrently with the sentences for kidnapping, robbery in the second degree and tampering in the first degree.
The evidence was that on the evening of June 27, 1989, Ms. W. [the victim], a teacher employed by the Higginsville School District, was attending a school board meeting at the high school. When the meeting ended at about 10:15 that night, she went to her car, a 1984 Mercury Lynx station wagon. She heard a person say, Then this person asked, "Do you know the Montgomery family, or Montgomery Street?" Ms. W. answered, "No, I don't know," and the next thing she knew there was a man standing next to her holding a knife that was pointed at her throat. The man said, "Get in the car, lady." She identified Davis as that man. She did as she was ordered, and Davis also got into the car, and then called to his accomplice, Another man, whom she referred to as "Fox", appeared and got into the back seat of the car.
Davis was the driver and Fox was in the middle of the back seat with his head between the two front seats. Davis and Fox took turns driving and for seven hours drove across Missouri in her station wagon, first to Kansas City and then to Springfield. They stopped a number of times, but she was never left alone. Each time they stopped, Ms. W. testified, she "was forced to have sex with them."
The trip ended in Springfield. Davis and Fox were tired and decided to stop at a motel to sleep. When Davis and the victim entered the motel to register, she "felt that this was the first opportunity [she] had to escape." So, she hit Davis with her purse and started screaming, The desk clerk called the police and watched Davis run out of the motel.
On June 28, 1989, Ms. W. identified Davis from a photographic lineup display. That same day, the victim's vehicle was recovered by the Springfield police. They found a knife between the back seats. She identified the knife as the weapon that Davis had placed to her throat.
On July 7, 1989, Davis was questioned by a Lafayette County deputy sheriff as to his role in the crimes. After being advised of his rights under Miranda, Davis gave an eleven page written statement wherein he admitted participation with Fox in the crimes with which he was charged, but claimed that he cooperated with Fox because he feared him. The statement gave the detail of the events from June 25 through June 28, 1989.
Davis stated that on June 26, 1989, he and Fox were at the home of Davis' girlfriend, Beverly Davis, who lives in Independence. The three of them decided to drive to Higginsville, but they were stopped by the police and Davis was taken to jail for driving without a license. After Davis was released, Fox said, "Let's get out of this town," so Davis and Fox stole a Gremlin. Fox, however, "burned the clutch," so they stole another vehicle. They drove around Independence to steal gas when Fox saw two girls walking down the street. They abducted and raped them.
They then returned to Beverly's home and slept until about noon the next day. Then Fox, Davis and Davis' father left to go to Springfield, but stopped in Higginsville to see Davis' mother.
Since Fox and Davis' father were not getting along, they needed their own transportation, so Fox decided to steal a car in Higginsville. There were some cars parked in front of the school and they were attempting to start a van when Ms. W. walked out to her car. Davis pulled out his knife and told her "all we wanted was her car and we wouldn't hurt her." They drove to Kansas City in her vehicle. During the drive they stole $21 from her purse. They drove to Independence and then to Springfield.
In his statement, Davis said that Ms. W. "suggested" that she might do a sexual "favor" for him if he would help her. He said she told him "she just wanted to stay alive," so she performed oral sex on him while he drove. Then, he stopped the car and they had "sex standing up next to the car" and then on the hood. Fox then woke up and they both began having sex with her at the same time. Later, as they drove toward Springfield, Davis and the victim "had sex for 45 minutes to an hour." After they arrived in Springfield, Davis left the victim in the car with Fox, and Fox began having sex with her in the back seat. Davis then suggested that they go to a motel to get some sleep, so they went to the Holiday Inn. When Davis attempted to check in with the victim, she hit him with her purse and started screaming. Davis ran out the front door to the car and drove away with Fox. That evening, they decided to steal another car and leave town. They saw a girl sitting in a car by the entrance to St. John's Hospital, and Davis started talking to her. Davis and Fox then opened the car and grabbed her. Fox tried to start the car, but it would not start. They let the girl go and Davis took off running. He then stole a Ford Mustang, fell asleep in the car, and was awakened by Fox. The next morning they attempted to drive to Kansas City in the stolen Mustang, but the car broke down outside of Springfield. They managed to get the car operating long enough to steal another vehicle, a 1965 GMC pickup. They drove it to Peculiar where the engine blew. They walked from Peculiar to the Research Medical Center in Kansas City where they took a bus back to Beverly's house in Independence. They remained there until July 5, 1989, when they were arrested.
Davis, who admitted to prior convictions for auto theft in 1985 and tampering in 1987, testified at the trial consistently with his written statement to the Lafayette County deputy sheriff. He admitted acting with Fox in the forcible abduction of Ms. W. and the robbery of her automobile. Davis said that when he first met Fox they talked about ways of making some money. When Davis told him, "I wasn't doing anything illegal," Fox belittled him and threatened him with violence and beat him. Fox relented only after Davis said, "I'll listen." Davis admitted that thereafter he and Fox stole a truck in Independence, abducted the two girls at knifepoint, and that Fox raped one of them. He testified to the events that led up to the abduction of Ms. W. and the theft of her vehicle, already described in his statement. Davis intimated that had he not cooperated with Fox during that escapade of abduction, "the lady [Ms. W.] probably wouldn't have been here today to tell what had happened."
On October 9, 1990, while being transported from a hearing, Davis told the attending officer that Fox was going to testify for Davis that Fox was to blame for all of the crimes that were committed and that Davis should not be blamed for them, and that Davis was to write a letter to Fox stating the same thing for him.
William P. Bellamy, the attorney representing Fox in the criminal charges, received a letter from Fox dated February 23, 1990, addressed to "Ron" [Fox] and signed "Michael Davis." The letter read:
Ron,
Friday, February 23rd, 1990.
I figured I would write to you to tell you how bad I feel about this whole mess. I have been thinking since we first got arrested about what brought us here in the first place. I am really sorry I got you into this mess. I hope you don't get into a bunch of trouble over all this stuff. I know it's all my fault. I was really trippin'. I just wanted us to make some money, and I needed help, but I didn't have anybody to go along with me. That's basically why I threatened you. I just wanted someone to help me, and by threatening to kill you I figured you would go along. I was pretty strung out even before I met you. I don't know what is going to happen to me. You don't deserve prison, and I don't think I do either. I just need help. I hope you don't use this letter against me. I'm writing to you to say how sorry I am. You wouldn't be here if I hadn't threatened to kill you. I guess I wouldn't blame you if you did go against me, but no matter what I am so very sorry for everything. No matter what happens please forgive me.
Michael Davis.
P.S. Sorry I held the knife to your throat. Hope I didn't hurt ya.
The first contention on appeal is that the trial court erred by sustaining the objection of the prosecutor to defense counsel's comments during the voir dire concerning the presumption of innocence principle and describing one of those comments as "incorrect" in the presence of the jury.
In the course of the voir dire, defense counsel undertook to address the veniremembers and...
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